Lee v. Smith
| Decision Date | 16 September 2022 |
| Docket Number | A22A1023, A22A1024 |
| Citation | 365 Ga.App. 359,878 S.E.2d 594 |
| Parties | LEE v. SMITH (two cases). |
| Court | Georgia Court of Appeals |
David Marlow Atkinson, Swift Currie McGhee & Hiers, Atlanta, Bradley S. Wolff, Sarah Rose Daley, Atlanta, for Appellant.
Matthew Crawford Alford, Nathan David Cronic Cronic, La Grange, for Appellee.
In this motor vehicle collision case, after the jury returned a verdict in favor of plaintiff David A. Smith II, defendant Donggue Lee appealed, and the Supreme Court of Georgia held that the trial court abused its discretion by excluding a defense witness based solely on Lee's late identification of the witness.1 The case was remanded to the trial court to reconsider its ruling in light of specific factors other than untimeliness,2 and on remand the trial court again excluded the defense witness. In Case No. A22A1023, Lee contends that the trial court (1) again excluded the witness based solely on his late disclosure and (2) misapplied each and every factor set forth in the Supreme Court's decision. In Case No. A22A1024, Lee challenges the trial court's supersedeas bond. For the reasons set forth infra, we affirm in Case No. A22A1023 and dismiss as moot Case No. A22A1024.
Following a jury's verdict and the trial court's subsequent entry of judgment, we must construe the evidence in favor of upholding the verdict.3 So viewed, the record shows that Smith "was a world-ranked collegiate high jumper who suffered several injuries, including a fractured left hip, in a September 2012 car collision."4 Smith graduated from college in 2014, but he continued to train as a high jumper while he pursued a master's degree. Smith filed suit against Lee in September 2014.
On July 1, 2015, Smith, who was still a student at the time, responded in part to Lee's interrogatories as follows:
With regard to an interrogatory on special damages, Smith listed his medical and rental car expenses.7 In response to an interrogatory on lost earnings, Smith indicated that he was "not claiming lost earnings."8 However, in response to Lee's request for production of documents, Smith stated:
In response to other requests for production of documents, Smith indicated that he was not claiming lost current or past wages.10
"Though Smith was able to return to competition and compete in the 2016 Olympics, he underwent surgery in January 2017 to remove a bone chip from his hip joint that, he alleges, was caused by the 2012 collision."11 Shortly before his surgery, Smith finished his master's degree. On March 30, 2017, after both the surgery and his graduation, Smith supplemented his response to Interrogatory No. 16 as follows:
Smith further intends to call various damages witnesses at trial regarding the impact that Smith's injuries will have upon his future in various aspects of his personal life and athletic career, including treating physicians and Smith's agent, Leo Finkley. To the extent necessary, and in the event the parties cannot stipulate to an agreed upon rate for reduction of future lost earnings to present cash value, Smith intends to call to trial to testify for that limited purpose a qualified economist.12
The same day, Smith sent to Lee a settlement demand for $3,000,000, in which he noted that his damages were extensive and, were it not for the injuries caused by the collision, he could have continued to compete as an Olympic athlete and world champion.
On April 5, 2017, the trial court entered its fourth consent scheduling order. The order required both parties to identify all witnesses by May 12, 2017, and complete all discovery depositions by June 15 and all trial depositions by July 28, and set the case for trial on August 7, 2017. On April 14, new defense counsel entered an appearance. A few weeks later, Smith's new sports agent, Lamont Dagen, sent Smith's counsel an e-mail detailing his opinion as to the impact of the collision on Smith's athletic career and earning potential.
On May 12, the last day for identifying witnesses, Smith again supplemented Interrogatory No. 16 to identify Dagen. He also supplemented his response to the interrogatory regarding lost earnings:
In addition to past, current and future lost earnings, Smith has further suffered special and/or general damages in the form of, inter alia, diminished earning capacity, diminished ability to work, labor or earn wages. Since the date of the accident giving rise to this lawsuit, Smith's occupation changed upon graduation from Auburn University in May 2016 from collegiate high jumper to professional high jumper. As a result of the injuries suffered during the collision and the reasonable and necessary medical treatment resulting therefrom (including, inter alia, surgery in January 2017), Smith has lost earnings (including, inter alia, contract, sponsorship, incentive, appearance and various other forms of earnings associated with his profession) in an amount to be more fully shown at trial.13
Also on May 12, Lee's counsel inquired when it would be possible for him to take Smith's agent's deposition and propounded additional discovery regarding Smith's sports agents, past earnings, and anticipated future earnings.
Lee deposed Dagen on June 20, and, one week later, identified an expert he planned to call as a rebuttal witness, sports agent John Nubani. Lee scheduled an evidentiary deposition of Nubani for July 28.
On July 19, at the pretrial hearing, Smith argued that Nubani should be excluded from testifying because he was not identified by May 12 and because Smith would be prejudiced in that he would not have time for Dagen to review Nubani's testimony prior to trial. The trial court excluded Lee's witness.
At trial, Lee conceded liability for the collision. Smith's doctor testified that Smith's hip fracture did not heal correctly, necessitating the 2017 surgery, and he opined that Smith would not be able to return to high jumping at the same level that he had reached prior to the fracture and subsequent surgery. Smith testified to the injury's impact on his performance and how the collision prevented him from becoming a professional athlete. Dagen testified as to Smith's lost wages and lost earning potential and opined that, had Smith not had to undergo surgery, he could have enjoyed a ten-year career as a professional high jumper and earned $1,000,000 over the course of his career.
During argument, Lee asserted that Smith's performance was not impaired by the collision and that Smith's claim of damages was speculative because he had no contract offers. However, Smith's counsel emphasized Lee's failure to rebut Dagen's testimony, as well as his failure to rebut the medical evidence. Ultimately, the jury returned a $2,000,000 general verdict for Smith.
Lee appealed, and a divided Court of Appeals affirmed the trial court's decision to exclude Lee's rebuttal witness.14 The Supreme Court reversed, holding that the late identification of a witness alone does not automatically justify the exclusion of that witness.15 Rather, a trial court must exercise its discretion and evaluate the particular circumstances of the party's noncompliance with its scheduling order to determine what, if any, action is necessary to vindicate its authority and provide fairness to the parties.16 Nevertheless, the Supreme Court held that even though the trial court excluded Lee's expert on an improper basis, "we cannot say on the current record that the trial court could not have come to the same conclusion if it had properly exercised its discretion" by considering the relevant factors.17 The Supreme Court remanded the case to this Court,18 and we remanded the case to the trial court.19
On remand, following briefing and a hearing, the trial court again excluded Lee's rebuttal witness. Thereafter, the trial court granted Smith's motion for supersedeas bond and ordered Lee to post a cash bond in the amount of $3,000,000 into the registry of the court. Lee's insurer, Travelers Casualty and Surety Company of America, ultimately filed a surety bond. These appeals follow.
"A trial court has broad discretion to control discovery, including the imposition of sanctions, and this Court will not reverse a trial court's decision on discovery matters absent a clear abuse of discretion."20 "An abuse of discretion occurs where a ruling is unsupported by any...
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